The last thing any couple planning a wedding wants to consider is the potential for a future divorce. However, making provisions for that possibility by negotiating and signing a prenuptial agreement can help both parties protect their assets while minimizing conflict and expensive family law litigation. Here’s a closer look at both the benefits and drawbacks of signing a prenuptial agreement.

The Advantages of Prenups

Drafting a prenuptial agreement allows you and your future spouse to set aside certain property as separate from the marital estate and not subject to division in a divorce. If either of you plans to make sacrifices for the sake of the household, for instance by supporting your partner while they finish their education, a prenup also provides a mechanism for protecting your investment by affording you a greater portion of the marital assets. 

Many couples find that the process of drafting the agreement offers benefits of its own. While it may not be the most romantic of negotiations, talking through a prenuptial agreement can help ensure you and your partner truly share a vision of the future, potentially bringing you closer together in a committed partnership.

Understanding the Drawbacks

Some couples fear that discussing a possible divorce might tarnish the romance of getting married. But starting the conversation far in advance can normalize the experience and keep it separate from the joy of your wedding.

Prenuptial agreements can actually limit your rights, especially if your partner has significant assets, high earning potential, or owns a stake in a business but excludes you from any share of same in the event of a divorce. At times, a party to a prenuptial agreement regrets signing the document and seeks a court determination that it is not enforceable. 

In Georgia, there are three criteria that courts must consider in assessing a challenge to a prenuptial agreement:  (1) Was the agreement obtained through fraud, duress, or mistake or through misrepresentation or nondisclosure of material facts? (2) Is the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?  For the most part, the most common factor leading to the invalidation of a prenuptial agreement has been the lack of sufficient disclosure of assets/income.  The other two factors have not been as commonly employed to set aside prenuptial agreements.  In one case, the Supreme Court of Georgia held that the fact that a husband’s net worth had increased by $14 million during the marriage was not a circumstance that would make the premarital agreement unfair because the wife had lived with the husband 4 years prior to their marriage and knew he was wealthy.  To protect your rights and ensure your agreement is accepted by the court, it’s best if both parties retain the services of a qualified family law attorney.

If you’re planning a wedding, NMS Law Firm - Nina M. Svoren LLC offers the legal experience and personalized service to ensure your rights are fully protected. For over 25 years, Nina M. Svoren has helped couples throughout northeast Georgia achieve positive results in a variety of family law issues, from negotiating prenups to litigating a divorce. Visit their website for more on her services or call (706) 282-4696 to schedule a consultation in Toccoa, GA, today.